Sunday, November 23, 2014

Conservative expert on immigration law to pursue suit against executive action

[Kris] Kobach, a 48-year-old lawyer and the person many conservatives have anointed to defeat it. For a decade, he has led the legal effort to strengthen the country’s immigration laws and toughen their enforcement.

But he is also Kansas’s secretary of state . . . Governors have been texting his cellphone and Senate staffers have been sending e-mails, and everyone is asking Kobach a version of the same question:

Can he beat this?

He has devoted his career to an immigration fight he always believed would be incremental. First he sued states for offering in-state college tuition to illegal immigrants. Then he wrote tough immigration enforcement laws for Arizona and Alabama. Then he counseled Texas Gov. Rick Perry (R) on the legality of using the National Guard to patrol the U.S.-Mexico border. He has been playing the long game, hoping to build a consensus case against amnesty over the course of his career, but now, listening on the phone, it sounds to him as if Obama is saying the case is over and the ruling is in. If so, his life’s work is unraveling, and a last stand will have to come now.

“Unbelievable,” he says, listening to Obama explain the basics of his plan to defer action for up to 4 million illegal immigrants, and when Obama says he will no longer deport people who have “played by the rules,” he begins writing notes.

“Illegal means not playing by rules,” he writes.

“Huh?” he writes when Obama explains his reasons for acting alone. “You have NO AUTHORITY!”

“A huge thing just happened tonight in the history of this country,” he announces to the group, and then he explains the details. “Imperial, executive amnesty,” he says. “The sacrificial shredding of our Constitution.”

People are enraged. They ask about the possibilities of impeachment or arresting the president for treason, and Kobach shakes his head. “Then what can we do?” one man asks.

Kobach says he has spent the last week considering that question, and he can think of only two options. “Congress could vote to defund parts of the government,” he says, but his friends in Congress tell him that is unlikely. The other option is a lawsuit filed by states and U.S. Immigration and Customs Enforcement agents against the federal government. “That one’s on me,” he says. He tells the group he has already begun drafting a suit as the lead attorney, with plans to file it in early December. Texas is interested in being a plaintiff. So are a few other states.

“Either we win this way or we lose big,” Kobach says. “If that happens, all of these illegal aliens will be eligible to feed at the trough filled by hardworking American people.”

That’s how he considers himself: as a man of absolutes, of order. His four daughters are home­schooled. His hair is always gelled and styled. He keeps an oversize dictionary open on a stand by his desk and an antique map collection on the walls. He went from being a champion high school debater, to graduating summa cum laude in his class at Harvard, to rowing for Oxford, to editing the Yale Law Journal.

“I believe in rules and fairness,” he says, and those are among the reasons he says he was attracted to immigration law in the first place. In what other kind of law was the legal conclusion so obvious? “Illegal alien,” he says. “We can argue it a million ways, but really, what more is there to say?”

He received a White House fellowship a few weeks before Sept. 11, 2001, and after the terrorist attacks he advised then-Attorney General John Ashcroft on immigration issues. He returned home to Kansas City, Kan., a few years later to take a job as a professor of constitutional law, just as Kansas passed a statute giving illegal immigrants eligibility for in-state college tuition. Kobach filed a lawsuit on behalf of out-of-state students who also wanted to pay in-state rates, and then he filed similar suits in two other states. There were only a few dozen conservative experts on immigration law — and fewer still who had spent time working inside the White House — and his caseload spread quickly across nearly a dozen states. He filed motions to prevent illegal immigrants from renting apartments in Pennsylvania, from committing voter fraud in Kansas and from taking jobs without work authorization in Arizona and Alabama. Some of the motions have been successful, some have lost and some are ongoing. He helped presidential nominee Mitt Romney formulate his immigration positions. He co-wrote 16 state laws and became one of the country’s most divisive politicians before ever being elected to state office.

“What bothers me most is the constitutionality of this,” he tells one Republican lawmaker over the phone, the day after Obama’s announcement. Kobach is working on the lawsuit, 40 or 50 pages already written. “We have a clear violation here of Article 2, Section 3,” he says.

“We are moving ahead quickly,” he tells another lawmaker. “We just have to sign the affidavits and gather the facts.”

The key to his lawsuit is finding the right plaintiffs, he says, so he has spent the last weeks compiling a list of more than a dozen ICE agents who he says are eager to file suit. They were hired and trained to enforce the country’s immigration laws, and now, he says, they believe that the president is essentially asking them to break those laws. Kobach also wants at least one state to be a plaintiff, likely Texas and possibly others. States are “lining up to sue this time,” he says. He could file one lawsuit on behalf of several states, which he thinks might have the best chance of reaching the Supreme Court. Or he could file individual lawsuits, one for each state, and force the issue into several federal court districts.

Either way, his chances hinge on the same issue that has plagued many of his previous immigration cases: He will have to prove the plaintiffs have standing to sue by showing they have suffered credible, personal injury because of Obama’s executive action. He thinks Texas, with an estimated 1.7 million illegal immigrants, might be his best chance. “The numbers there are good for us,” he says. “Illegal-alien households with kids consume a lot of resources: K-through-12 education, food stamps, earned income tax — these things add up.”

He will likely have a few supporting attorneys with him on the case, but on this day in his Topeka office, he is managing the lawsuit alone. The questions come by e-mail from prospective plaintiffs, governor’s offices and think tanks in Washington: Who will pay the legal fees for the case? In which district will he file? How early in December? Are the plaintiffs ready to withstand the scrutiny of a case that is likely to unfold over two or three grueling years?

1 Comments:

Simply letting anyone work anywhere - the crux of it, "simply". Nothing is simple in the Western Welfare Democracies. I am more than happy that people who simply want to work here are allowed to do so but that is not the nature of the migration